Court loss with a silver lining

Jennifer Pizer

Efforts to secure equal benefits for a gay federal court employee in San Francisco suffered a setback Wednesday when a federal judge dismissed the employee’s lawsuit. But Lambda Legal Defense, which is representing the employee, Karen Golinski, says the dismissal has a silver lining.

Judge Jeffrey White, an appointee of President George W. Bush to the federal district court for Northern California, on March 16 granted the U.S. Department of Justice’s request to dismiss the case, Golinski v. Office of Personnel Management.

Golinski, who was able to legally marry her same-sex spouse in California in 2008, is employed as an attorney by the 9th Circuit U.S. Court of Appeals. As an employee, she is entitled to certain benefits, including health coverage for herself and her family. But when Golinski applied to add her spouse to her health coverage, the administrative office of the 9th Circuit denied the coverage. Ninth Circuit Chief Justice Alex Kozinski, in his capacity as head of administration for the circuit, ruled that was discriminatory, and he ordered the office to reverse its decision. But the Office of Personnel Management, headed by openly gay appointee John Berry, instructed the insurance company, Blue Cross/Blue Shield, to deny the claim, citing the Defense of Marriage Act (DOMA).

DOMA, enacted in 1996, prohibits any federal entity from recognizing a marriage license granted to a same-sex couple.

Kozinski, a strong civil rights supporter, ordered OPM to stop instructing the insurance company that coverage for Golinski would violate DOMA and to stop interfering “in any way” with Golinski’s obtaining coverage for her spouse.

OPM essentially ignored Kozinski’s order and reiterated, through a press release, that DOMA prohibits employees from obtaining health coverage for same-sex spouses.

Golinski, with the help of Lambda, sought a preliminary injunction to force OPM to abide by Kozinski’s order.

Judge White’s decision on March 16 denied that request, even though, in doing so, he noted that both parties “do not dispute, and the Court finds, that [Golinski] has a clear right to relief.”

In doing so, he noted that DOMA was not implicated in this specific phase of the case. Instead, he said, the only question before him was a procedural one—whether the court could rule that Kozinski’s order trumps OPM’s. And he ruled OPM had a duty to act in the way it did.

“The Court cannot find and neither party has cited any authority to support the contention that a contrary interpretation of federal law by an administrator [such as Kozinski] governs the disbursement of federal employee health benefits when the Executive agency tasked by Congress to administration the program [OPM], reading current federal law to preclude distribution of benefits to same-sex couples, determines that coverage is improper,” concluded White.

“It’s terribly disappointing that Karen and Amy [her spouse] will have to wait even longer for the health benefits that Karen’s heterosexual colleagues already receive,” said Jenny Pizer, National Marriage Project Director for Lambda Legal. But she said Lambda was “encouraged” that Judge White also concluded that Golinski “has a clear right to relief” and his statement that DOMA “unfairly” restricts benefits.

But Pizer said Lambda would file an amended complaint now to add claims challenging the constitutionality of DOMA.

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